There are many ways to sub divide or classify the Law. It can be on the basis of subject matter like ‘Substantive Law’ and ‘Procedural law, Civil Law and Criminal Law, Personal Law and Public Law, Property Law, Contact Law etc. Similarly, one classification of ‘Law’ can be on the basis of Territory.’
Law is territorial in the sense that its operation itself is territorial. Generally, the Laws made by the State are applied to persons, things and events which are within its territorial jurisdiction. In other words, the enforcement of Law is confined to the territorial boundaries of the State enforcing it.
However, there may be cases where there can be extra-territorial operation of Law. Extraterritorial operation of Law means that it also operates outside the limits of the territory of the state which enacted that particular Law.
A Territorial Law is a ‘lex loci’ or law of a particular place and applies to all persons inhabiting the territory of a State irrespective of their personal status.
‘Law’ as a body of rules is generally applied in the administration of Justice. Usually, it is linked to some territory and is enforced by the Sovereign of the territory concerned.
When one speaks of the law of India, one does not mean merely that the law in question is enforced in India. Such a statement postulates not merely the territorial enforcement of law, but the territoriality of the law itself.
Usually the laws made by the legislature apply to persons and things which are within its jurisdiction or in respect of acts and events taking place within such jurisdiction.
Territorial Law in the context of international scenario is otherwise addressed as the Municipal Law or the domestic law of the country. Municipal Law is the National, Domestic, or Internal law of a Sovereign State defined in opposition to International Law.
Municipal Law in the context of International Law includes not only the law at the National level, but also the law at the State/Provincial or local levels. Classification of laws as Central Law, Provincial/State Law and Local Law when taken together gives a holistic idea of the Territorial Law.
Citizens are subjected to a variety of laws made by Central, State and Local Legislative and Administrative bodies. In general, all laws are part of a hierarchy in which Central Laws are at the top, Local Laws at the bottom and State Laws somewhere in between.
However, the other classifications of laws such as, Substantive Law, Procedural Law, Civil Law, and Criminal Law can be included under the scope of Territorial Law taking into consideration the matter of enforcement.
Theory of territorial nexus
Article 245 (1) of Indian Constitution provides that a State Legislature may make laws for the territory of that State. The State Legislature cannot make extra territorial laws, except when there is sufficient connection or nexus between the State and the object i.e., subject matter of legislation (object may not be physically located within the territorial limits of State).
Extra-Territorial Operation of Parliamentary Law
Article 245 (2) of Indian Constitution provides that no law made by the Parliament would be invalid on the ground that it would have extra-territorial operation i.e., takes effect outside the territory of India.
Substantive Law generally deals with the rights and obligation of the parties irrespective of residence of the citizens, e.g., Indian Contract Act 1872, Consumer Protection Act, 1986, Right to Information Act, 2005 etc.
Similarly, the Procedural Laws cover the procedural aspect of implementation of Substantive Laws, e.g., the Criminal Procedure Code, 1973, the Civil Procedure Code, 1908, the Evidence Act, 1882, the Limitation Act, 1963 etc.
Law has to be enforced by a State and the power of the State does not extend beyond the reach of the State. However, the mutual interest of States in the maintenance of order and justice demands that States should co-operate with one another.
A legal system belonging to a defined territory means partly that its rules do not purport to apply extra-territorially, partly that those who apply and enforce them do not regard them as applying extra-territorially and partly that other States do not so regard them. The above statement needs certain qualifications.
A system of law applies only to persons, things, acts and an event within a defined territory is not a self–evident truth; it is merely a generalization from the practice of States.
The Laws made by the Union of India are otherwise known as Central Laws. Article 245 provides that Parliament may make laws for the whole or any part of the territorial area and the legislature of the State may make laws for the whole or any part of the State.
Similarly, Article 246 of the Indian Constitution deals with subject matter of Laws made by Parliament and by the Legislature of States. Schedule VII of Indian Constitution provides three lists enumerating matters over which power to legislate lies. These lists are :
- ‘Union List’,
- ‘State List’ and
- ‘Concurrent List’.
Parliament has the exclusive power to make any law with respect to any matter not enumerated in the ‘Concurrent List’ and ‘State List’.
The power to legislate upon the matters enumerated in the ‘Union List’ specifically lies with the Union Govt. This list contains 97 entries. The entries are generally the matters of national importance.
The laws made by the Union Government over the subjects mentioned in the ‘Union List’ are generally classified as Central Laws. These laws are applicable to the whole country. However, each Law/Statute has its own jurisdiction expressed in the term of applicability. The extent of application of the Act is generally given at the beginning of the Act.
The Central Laws are legislated by the Parliament of India. The Parliament includes Lok Sabha (House of Representatives or the Lower House), Rajya Sabha (Council of States or the Upper House) and the President.
The matter over which law is required to be made can be introduced in either House of the parliament in the form of a Bill. Then the bill is discussed and debated in that house and if passed with requisite majority, it is moved to the other house for discussion.
If the other house passes it with requisite majority, then it is sent to the President for the assent. After getting the assent of the President, it becomes an Act. It is pertinent to mention here that for the administration of Justice the power of legislation is entrusted to the legislative wing i.e., the Parliament & the State Legislatures.
The power to execute, the Laws rests with the executive wing i.e. the administrative authorities of Central and State governments and the interpretation of the laws rest with the Judiciary.
When the bill is converted to an Act after getting the assent of the President, the Supreme Court examines the Act in the light of constitutional provisions to see that it does not violate any provisions of the Constitution of India and declares the law as valid.
If at any point of time, the Supreme Court of India observes the violation of provisions of the Constitution, then it has the power and authority to declare it as unconstitutional and hence null and void.
The jurisdiction of the Central Laws, as we know covers the whole of India irrespective of the State jurisdiction. It is already mentioned that the Union Government has the power to legislate on the subjects contained in the ‘Union List’ but it can also legislate in the State matters on certain occasions.
Article 249 of the Indian Constitution gives the power to the Parliament to legislate with respect to a matter in the ‘State List’ in the national interest. It describes if the Council of States (Rajya Sabha) has declared by a resolution supported by not less than two-third of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the ‘State List’ specified in the resolution, it shall be lawful for the Parliament to make laws for the whole or any part of the territory of the India with respect to that matter while the resolution is in course.
A resolution passed under the above-mentioned clause shall remain in force for such period (not exceeding one year) as may be specified therein. If the continuance of the resolution is approved with requisite procedures it can be extended for a further period of one year. It will cease to have effect on the expiry of six months and the resolution ceases to be in force.
Similarly, Article 250 of Indian Constitution confers the powers on the Parliament to legislate with respect to any matter in the ‘State List’ if a proclamation of Emergency is in operation.
The Indian Penal Code 1860, The Code of Criminal Procedure 1973, The Code of Civil Procedure 1908, The Indian Evidence Act 1872, The Indian Contract Act 1872 etc are some of the examples of Central Laws in India.
Distribution of Legislative Subjects
‘Legislation’ is the process of making a law. The Constitution makes a twofold distribution of legislative powers:
- With respect to territory, the ambit of which is discussed under territorial legislative jurisdiction, covered under Article 245 of Indian Constitution.
- With respect to subject matter of legislation (i.e., three lists) There are three lists which provide for distribution of legislative power under Seventh Schedule to Indian Constitution –
- a. Union List (List I) – It contains 97 items and comprises of subjects which are of national importance. Only the Union Parliament can legislate with respect to these matters e.g., Defence; Foreign Affairs, Banking, Currency, Union Taxes, etc.
- b. State List (List – II) – It contains 66 items and comprises of subjects of local or State interest and thus lie within the legislative competence of the State Legislatures, viz. Public Order and Police, Health, Agriculture, etc.
- c. Concurrent List (List III) – It contains 47 items, with respect to which, both Union Parliament and the State Legislature have concurrent power of legislation. The Concurrent List (not found in any other federal Constitution) was to serve as a device to avoid excessive rigidity to a twofold distribution. It is a ‘twilight zone’, as for to so important matters, the States can take initiative, while for the important matters, the Parliament can do so. Besides, the States can make supplementary laws in order to amplify the laws made by Union Parliament. The subjects include general laws and social welfare – civil and criminal procedure, marriage, contract, planning education, etc.
The laws made by the State Legislature are known as ‘State Laws’. It has the jurisdiction and applicability over the territory of the State which has legislated it. As already discussed, the State Government has the jurisdiction to legislate upon the matters enumerated in the State List of Schedule VII.
This list contains 66 items which concern the interest of the State. Each State is free as per their requirement to make laws which is applicable and enforced in that State only. In case of the violation, the individuals of the State can approach the respective courts of that States for seeking justice.
Some of the examples of State made laws are as follows:
Laws enacted by Orissa State Legislature
The Orissa Municipal Corporation Act, 2003
The Orissa Urban Police Act, 2003
The Orissa Value Added Tax Act, 2004
Laws enacted by Madhya Pradesh State Legislature
Madhya Pradesh Nagarpalika Vidhi (Sanshodhan) Adhiniyam, 2009
The Madhya Pradesh VAT (Amendment) Act, 2010
The Madhya Pradesh Karadhan (Amendment) Act, 2009
The Madhya Pradesh Gram Nyalaya (Nirsan) Adhiniyam, 2009
Inconsistency between Union and State Laws
Article 254 of Indian Constitution provides that “if any provision of a Law made by State Legislature is repugnant to any provision of a Law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect matters enumerated in Concurrent List, then the Parliamentary Law whether passed before or after State Legislatures’ Law or existing Law shall prevail and ‘State Law’ to the extent of repugnancy be void”.
‘Article 254 (1) enumerates the rule that in the event of a conflict between a Union and State Law, the former prevails’. The Union Law may have been enacted prior to the State Law and subsequent to the State Law.
The principle behind when there is legislation covering the same ground both by the Centre and by the State, both of them competent to enact the same, the Central Law should prevail over the State Law.
The expression ‘Existing Law’ refers to laws made before the commencement of the Constitution by any Legislature, Authority etc. some of the examples are Criminal Law, Civil Procedure, Evidence, Contact, Consumer Protection etc.
The repugnancy here means irreconcilable inconsistency. The provisions of two Acts should be such that they can stand together or operate in the same field. If they can operate in the same field relating to the same entry in the same list without coming into conflict with each other.
Ordinance making power of the President of India and Governor of the States
The most important power of the President is his/her power of issuing ordinances given under Article 123 of Indian Constitution. It is the power to legislate when both houses of Parliament are not in session. Similarly, the Governor of the State enjoys such power under Article 213 of Indian Constitution.
The ambit of this power is coextensive with the legislative power of the Parliament i.e., it may relate to any subject which Parliament can legislate and is also subject to the same constitutional limitations, as the legislation by the Parliament. However, the President can withdraw the ordinance at any time.
Predominance of Union Law and Limitations of State Legislatures
1. ‘In case of overlapping between three lists, regarding a matter, the predominance is given to the Union Law’.
2. In the concurrent sphere in case of repugnancy or inconsistency between Union and State Laws relating to the same subject, Union Law prevails.
3. Extensive nature of Union List – Some subjects normally intended to be in the jurisdiction of the States are in the Union List e.g., Industries, Election and Audit, Inter State Trade etc.
4. ‘Residuary Powers’ – ‘Power to legislate with respect to any matter not enumerated in any three lists is given to the Union’. e.g., Imposition of taxes.
5. Expansion of powers of Union Legislature under certain circumstances – In the following situations, Parliament can legislate with respect to State List subjects:
a. When Council of States (Rajya Sabha) declares by a resolution of Two-third majority that it is necessary in national interest.
b. Under a Proclamation of Emergency.
c. Failure of constitutional machinery in a State.
d. By agreement between States, with the consent of State Legislatures.
e. To implement to International Treaties and Agreements.
6. Certain types of bills cannot be moved in State Legislatures without previous sanction of the President. Also, certain bills passed by State Legislatures cannot become operative until they receive the President Ascent, after having been reserved for his consideration by Governor of State.
‘Local Laws’ refer to laws applicable to the locality of a territory within a State. The ‘Local Law’ is the law of a particular locality and not the general law of the country. It may be of two kinds:
a. Local Enacted Laws
b. Local Customary Laws
The Local Enacted Law has its source in the local Legislative Authorities or Municipalities or other corporate bodies empowered to govern their spheres by bye-laws, supplementary to the general law.
The power and authority to legislate Local Laws normally rests with the Local Governments. However, the State Legislature is also empowered to legislate upon local matters.
Provisions relating to Local Governments which mean Rural Local Government and Urban Local Government are the Panchayat Law and Municipal Laws in India.
As per 73rd Constitutional Amendment Act, 1992, the Rural Local Government means and includes :
a. Gram Panchayat at the Village Level;
b. Panchayat Samiti at the Block Level; and
c. Zilla Parishad at the District Level
Similarly, as per 74th Constitutional Amendment Act, 1992 Urban Local Government means and includes:
a. Nagar Panchayat (NAC – Notified Area Council in case of Orissa) for a transitional area i.e., an area in transition for a rural area to an urban area;
b. Municipal Council for a smaller urban area; and
c. Municipal Corporation for a larger Urban Area.
The 73rd and 74th Constitutional Act, 1992 have been ramification of the concept of democratic decentralization. The rationale behind this process of democratic decentralization is that the problem affecting the locality can be better handled by the local people.
The idea or objective of these amendments is to empower the local people. Schedule Eleven of the Constitution relating to Rural Local Government and Schedule Twelve relating to Urban Local Government were annexed to the Schedules to the constitution of India.
Schedule Eleven contains 29 functional items over which the power to make laws can be exercised by the Rural Local Governments. Similarly, Schedule Twelve consists of 18 functional items over which the Urban Local Governments are free to make laws.
So, it is pertinent here to mention that while enacting the laws concerning the locality, the interest of the local people is paramount. However, the State is also free to legislate in the matters enumerated in eleventh and twelfth schedule in the greater interest of the State.
Types of Legislation
1. Supreme Legislation:
‘Legislation’ is said to be supreme when it is proceeded from the supreme or sovereign power of the Parliament and State Legislatures. It is incapable of being repealed, annulled or controlled by any other legislative authorities.
2. Subordinate Legislation:
‘Legislation’ is set to be subordinate when it is proceeded from any authority other than supreme subordinate authority. It is made under the powers delegated to it by the Supreme Authority. There are five forms of subordinate legislation.
a. Executive – The rule making power under the Statutes is conferred on the Executive (i.e., the branch of the Government that executes the laws or runs the administration).
b. Judicial – The Judiciary has powers to frame rules for the regulation of their procedures and administration.
c. Municipal – Powers are delegated to Municipal Bodies by the Act, which brings them into existence to frame rules and by-laws for the area under their jurisdiction for carrying on various activities entrusted to them.
d. Autonomous – The Autonomous Bodies, like universities are given power by the State to make rules and by-laws for their administration.
e. Colonial – The laws of the countries which are not independent or which are the control of some other State are subject to the supreme legislation of the State under who control they are.
Power to legislate normally rests with the Parliament and State Legislatures. However, in some matters this power of legislation can be transferred to the Administrative Authorities.
There are a large number of Corporations standing outside the governmental system, which are invested with the powers of making bye-laws for themselves and in many cases for the public at large.
Such Corporations are called ‘Public Utility Concerns’, for example, Authorities for Transport, light, heat, water, etc. these corporations administer laws strictly called ‘autonomous’ in as much as they concern directly only the members of a particular corporation.
The most familiar example is the ‘Articles of Association of a Joint-Stock Company’. The Bye-laws of a Railway Company, the Rules made by a university are some of the instances of Autonomous Law.
By ‘Customary Law’ is meant those rules and principles which have been observed in a particular community in actual practice for a long time.
These rules are having the effect of Law. In essence, Customary Laws are the part of the Local Laws applicable to a particular locality within a State where it is observed.
It has its roots in those in immemorial ‘Customs’ which prevail in a particular part of the State and, therefore, have the force of law. They come into existence due to a number of reasons.
When some kind of action gets general approval and is generally observed for a long time it becomes a ‘Custom’. Sometimes they come into being on the ground of expediency.
Other reasons for their coming into existence are imitation, convenience etc. When they are recognized by the State they become a part of the ‘Civil Law’.
There is a difference of opinion among the jurists about the scope and the authority of the ‘Customs’. Some say that ‘Customs’ are valid law. Others say that they are simply a source of law.
Requisites of Valid Customs
In order to be a Valid Custom, it must conform to certain requirements laid down by the law, which are as follows:
c. Compulsory Observance d. Continuity and Immemorial Antiquity
Law is the body of principles recognized and applied by the State in the administration of Justice. Law can be described in terms of legal order accepted by society at large functioning within the limits of States.
There are many ways to classify the Law. It can be classified on the basis of subject matter like Substantive Law and Procedural Law, Civil Law and Criminal Law, Personal Law, property Law, Law relating to contract and Law of Torts etc.
On the basis of Jurisdictions exercised by the State or Government. The Laws can also be classified on the basis of Territorial Jurisdiction as Central Laws, State or Provincial Laws and Local Laws.
A Territorial Law is a ‘Lex Loci’ or Law of a particular place and applies to all persons inhabiting territory of a State irrespective of their personal status.
Usually, it is linked to some territory and it is enforced by the Sovereign of the territory concerned.
‘Territorial Law’ in the context of international Scenario is otherwise addressed as Municipal Law or the Domestic Law of the country.
Municipal Law in the context of International Law includes not only the law at the National level, but also, the law at the State or provincial or local levels.
‘Substantive Law’ generally deals with the rights and obligation of the parties irrespective of residence of citizens.
Procedural Laws cover the procedural aspect of implementation of Substantive Laws.
Laws have to be enforced by a State and the power of the State does not extend beyond the reach of the State.
The Laws made by the Union of India are generally known as Central Laws.
The Jurisdiction of the Central Laws covers the whole of India irrespective of the state Jurisdiction. The Laws made by the State Legislature are known as State Laws. They have Jurisdiction and applicability over the territory of the State which has legislated it.
The Local Law is the law of a particular community and not the general law of the country.
Provisions relating to Local Government which mean Rural Local Government and Urban Local Government are the Panchayat and Municipal Law in India.
The Bye Laws of Corporations and Articles of Association of Joint Stock Company and the Rules made by a university are some of the instances of Autonomous Law.
By ‘Customary Law’ is meant those rules and principles which have been preserved is a long time. These rules have the effect of Law.